2015 National Training Seminar on the Federal Sentencing ... · the average participant in the criminal activity at ... of those, 21,907 sentenced under §2D1.1. 13 ... the §2D1.1

Drug Offenses

Annual National Seminar New Orleans, LA

September 17, 2015Aug. 27, 2015

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www.ussc.gov (202) 502-4545 @theusscgov [email protected]

Hon. Ketanji Brown Jackson

U. S. District Court for the District of Columbia

Kathleen Cooper Grilli

General Counsel, USSC

Rachel Pierce

Senior ESP Specialist, USSC

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Drug Cases FY2014: 22,193 of 75,836 Total Cases

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Proposed Amendments Relating to Drug Offenses

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Mitigating Role

•Provides additional guidance to assist the courts in the determination of whether a mitigating role adjustment applies

§3B1.2

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Mitigating Role (cont.)

•Resolves circuit conflict regarding the determination of “average participant”

• Specifies that the court should compare defendant to the average participant in the criminal activity at issue, not to the typical offender who commits similar crimes

Application Note 3(A)

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•Provides that certain individuals who perform limited functions in the criminal activity “may receive” a role adjustment

•Previously stated “is not precluded from”

Application Note 3(A)

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Mitigating Role Factors

•Adds a non-exhaustive list of factors for the court to consider:

i. The degree to which the defendant understood the scope and structure of the criminal activity

ii. The degree to which the defendant participated in the planning/organization of the activity

Application Note 3(C)

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Mitigating Role Factors (cont.)

iii. The degree to which the defendant exercised decision-making authority

iv. The nature and extent of the defendant’s participation in the commission of the criminal activity

v. The degree to which the defendant stood to benefit from the criminal activity


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•Provides an example that a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment

•Provides that the fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative


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Hydrocodone Offenses

•Addresses the rescheduling of hydrocodone products from Schedule III to Schedule II

•Calculation of the BOL is based upon the amount of actual hydrocodone, not the entire weight of the pill

•1 gram hydrocodone = 6700 grams marijuana

•Removes reference to Schedule III hydrocodone

§2D1.1


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§2D1.1 - DrugsUnlawful Manufacturing, Importing, Exporting, or

Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

75,836 total cases in FY-2014; 22,193 sentenced under Chapter Two, Part D; of those, 21,907 sentenced under §2D1.1

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The Drug Guideline §2D1.1 and the “Included List” at §3D1.2(d)

•§2D1.1 is on the “included list” at §3D1.2(d), which makes two determinations regarding application:• Relevant Conduct • Multiple Counts

§§2D1.1 & 3D1.2(d)

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Chapter Two Offense GuidelinesIncluded at §3D1.2(d):

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The Drug Guideline §2D1.1 and Relevant Conduct

•Relevant Conduct is “expanded” to include drug offenses in the same course of conduct or common scheme or plan as the offense of conviction for which the applicable Chapter Two guideline would also be §2D1.1 (or a similar guideline)

• This does not require that there actually be multiple counts of conviction, however

§§2D1.1 & 1B1.3(a)(2)

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The Drug Guideline §2D1.1and Multiple Counts

•When there aremultiple counts of conviction that use the §2D1.1 drug guideline, all of those counts will be addressed by a single application of the multiple counts, thereby grouping under “Rule (d)”

§§2D1.1 & 3D1.2(d)

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Grouping Under “Rule (d)”

One application, with the offense level for the group based on an aggregate of the drugs and

the offense conduct “taken as a whole”

Count 1: §2D1.1 Drugs



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The Drug Guideline §2D1.1and Multiple Counts (cont.)

•Relevant conduct will necessarily include acts in the same course of conduct or common scheme or plan of any of the offenses of conviction under §2D1.1

•Application will include an aggregate of the drugs and the offense conduct “taken as a whole”

§§2D1.1 & 3D1.2(d)

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§2D1.1 Drug Trafficking, Etc.

(a) Base Offense Level (BOL) (apply the greatest): Level

(1) defendant convicted under 21/841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 960(b)(1), (b)(2), or (b)(3), and conviction establishes death/serious injury from drug use; and committed after similar prior conviction 43

(2) defendant convicted under 21/841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 960(b)(1), (b)(2), or (b)(3), and conviction establishes death/serious injury from drug use 38

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§2D1.1 Drug Trafficking, Etc. (cont.)

(a) Base Offense Level (BOL) (apply the greatest): Level

(3) defendant convicted under 21/841(b)(1)(E) or 960(b)(5), and conviction establishes death/serious injury from drug use; and committed after similar prior conviction 30

(4) defendant convicted under 21/841(b)(1)(E), or 960(b)(5), and conviction establishes death/serious injury from drug use 26

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§2D1.1 Drug Trafficking, Etc. (cont.)

(5) the offense level from the Drug Quantity Table

EXCEPT if mitigating role (§3B1.2) applies:

BOL Reduction

32 -2

34 or 36 -3

38 -4

(a) Base Offense Level (BOL) (apply the greatest):

If resulting BOL is greater than 32, and minimal role (§3B1.2(a)) applies, decrease to BOL 32

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Mitigating Role Reduction

•After the BOL reduction(s), the Specific Offense Characteristics (SOCs) and other adjustments are then applied

•Necessarily the defendant will also receive a mitigating role adjustment in Chapter Three (§3B1.2)

§2D1.1(a)(5)

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Example: §2D1.1 Drug Quantity Table Cocaine BOLS

Level 38

Level 36

Level 34

Level 32

Level 30

Level 28

Level 26

450 KG

150 KG

50 KG

15 KG

5 KG

3.5 KG

2 KG

Post Nov. 1, 2014, “Drugs Minus 2” Amendment #782

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Example: §2D1.1 Drug Quantity Table Cocaine BOLS (cont.)

500 G

400 G

300 G

200 G

100 G

50 G

< 50 G

Level 24

Level 22

Level 20

Level 18

Level 16

Level 14

Level 12

Post Nov. 1, 2014, “Drugs Minus 2” Amendment #782

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Weight of Controlled Substance

•Unless otherwise specified, the weight of a controlled substance refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance

Note (A) to Drug Quantity Table

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Weight of Controlled Substance (cont.)

• If a mixture or substance contains more than one controlled substance, the weight is based on the one that results in the greater offense level

Note (A) to Drug Quantity Table

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“Mixture or Substance”

•Mixture or substance does not include materials that must be separated for use, e.g., waste water from an illicit laboratory used to manufacture a controlled substance

• Possible distinctions for statutory determinations

§2D1.1, App. Note 1

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Drug “Actual” (i.e., Pure Drug)

•Drug purity is only factored for methamphetamine, amphetamine, “ice,” oxycodone, and PCP

•For meth, amphetamine, and PCP, a comparison is made between the offense level for the drug “actual” and the offense level for the mixture or substance of the drug, and the greater is used

Drug Quantity Table Notes (B) & (C)

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Drug Equivalency Tables

•Drugs not included on the Drug Quantity Table are converted to marijuana• E.g., MDMA (“ecstasy”) 1 gm. = 500 gm. marijuana

•Different types of drugs are converted to marijuana so as to be added together• E.g., cocaine and heroin


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Drug Quantity TableBase Offense Levels for Marijuana

90,000 KG Level 38

30,000 KG Level 36

10,000 KG Level 34

3,000 KG Level 32

1,000 KG Level 30

700 KG Level 28

400 KG Level 26

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100 KG Level 24

80 KG Level 22

60 KG Level 20

40 KG Level 18

20 KG Level 16

10 KG Level 14

5 KG Level 12

2.5 KG Level 10

1 KG Level 8

Less than 1 KG Level 6

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Scenario 1

•450 gm of cocaine (mixture/substance) and 350 gm heroin (mixture/substance)

•Cocaine and heroin are each listed on the Drug Quantity Table • BOL 22 and BOL 24, respectively

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Scenario 1 (cont.)

•Drug Equivalency Table• 1 gm cocaine = 200 gm marijuana• 450 gm cocaine x 200 = 90,000 gm = 90 kg marijuana

• 1 gm heroin = 1 kg marijuana• 350 gm heroin x 1 kg = 350 kg marijuana

•Drug Quantity Table• 440 kg marijuana = BOL 26

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Scenario 2

•1000 tablets of MDMA with tablet weight of 200 mg each

•MDMA is not listed on the Drug Quantity Table

•MDMA is listed on the Drug Equivalency Table

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Scenario 2 (cont.)

•1000 tablets (mixture/substance) of 200 mg each = 200,000 mg = 200 gm of MDMA

•Drug Equivalency Table • 1 gm MDMA = 500 gm marijuana• 200 gm MDMA x 500 = 100,000 gm = 100 kg marijuana

•Drug Quantity Table• 100 kg marijuana = BOL 24

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Scenario 3

•1000 tablets containing methamphetamine

•Meth and meth “actual” (purity) are listed on the Drug Quantity Table

•Each tablet weighs 190 mg and contains 22 mg of meth “actual” (purity)

•Weight of all 1000 tablets = 190,000 mg = 190 gm of meth mixture/substance

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Scenario 3 (cont.)

•Weight of meth “actual” in all 1000 tablets = 22,000 mg = 22 gm

•Drug Quantity Table• 190 gm meth mixture = BOL 24• 22 gm meth “actual” = BOL 26

•Greater BOL is to be used: BOL 26

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Scenario 4

•1000 tablets called “ecstasy” but really a mixture of MDMA and meth

•Meth and meth “actual” (purity) are listed on the Drug Quantity Table but MDMA is not listed there

•MDMA is listed on the Drug Equivalency Table, where the guidelines consider the entire mixture or substance containing MDMA but do not consider MDMA “actual” (purity)

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Scenario 4 (cont.)

•Each tablet weighs 190 mg and contains 25 mg of MDMA (purity) and 22 mg of meth “actual” (purity)

•Weight of all 1000 tablets = 190,000 mg = 190 gm of mixture/substance containing MDMA and meth

•Weight of meth “actual” in all 1000 tablets = 22,000 mg = 22 gm

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Scenario 4 (cont.)

•Drug Equivalency Table • 1 gm MDMA = 500 gm marijuana • 190 gm MDMA mixture/substance x 500 = 95,000 gm =

95 kg marijuana

•Drug Quantity Table• 95 kg marijuana (190 gm MDMA mixture) = BOL 22• 190 gm meth mixture = BOL 24• 22 gm meth “actual” = BOL 26

•Greatest BOL is to be used: BOL 26

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Controlled Substances That Are Not Referenced in the Drug Guideline

•Determine the most closely related substance that is referenced, by considering the following• Similar chemical structure• Similar stimulant, depressant or hallucinogenic effect on

the central nervous system• Lesser or greater quantity needed to produce a similar

effect on the central nervous system


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§2D1.1 Specific Offense Characteristics

•The most frequently applied SOCs at §2D1.1

• (b)(1) Firearm/Dangerous Weapon - 12.3%• Note: An additional 3.8% (appx.) did not get this SOC because

of a § 924(c) firearm conviction

• (b)(17) “Safety Valve” Subdivision Criteria - 33.4%

Nationally - FY-2014 Sentencing Data

Only two other SOCs at §2D1.1 are applied in more than 1% of drug cases: (b)(5) Importation re: meth - 2.4%; (b)(12) Maintaining a premises - 4.4%

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§2D1.1(b) Specific Offense Characteristics

Level

(1) firearm, dangerous weapon possessed +2

****************************************

(17) if defendant meets the subdivision criteria(1)-(5) of §5C1.2(a) (“the safety valve”) -2

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“Firearm” SOC

“…should be applied if the weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.”

§2D1.1(b)(1) & App. Note 11

Note: Under relevant conduct a defendant can be held accountable for a co-participant’s firearm

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“Firearm” SOC & 18 U.S.C. § 924(c)

•When the defendant is also convicted of § 924(c) (Use/Carry/Possession of a Firearm in a Crime of Violence or Drug Trafficking) do not apply the dangerous weapon SOC at §2D1.1(b)(1)

• § 924(c) mandatory min. at least 5 yrs. consecutive• This accounts for any weapon in relevant conduct• §2D1.1(b)(2) (use of violence) also would not apply

§2D1.1(b)(1) & §2K2.4, App. Note 4

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Impact: Single Count of § 924(c) & Multiple Counts of Drug Trafficking

One application: Offense level for the group based on drug aggregate;

Firearm SOC NOT APPLIED




Count 4: §2K2.4§ 924(c)

Re: Ct. 2 Drugs60 mos. consec.

Count 4 Runs consecutively

to ALL Counts

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SOC (b)(17) at §2D1.1:“The Safety Valve SOC”

•The defendant must only meet the criteria set forth in subdivisions (1)–(5) of subsection (a) of §5C1.2 (“The Safety Valve”)

2-Level Decrease

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SOC (b)(17) at §2D1.1:“The Safety Valve SOC” (cont.)

•Defendant does not have to be convicted under select statutes listed at §5C1.2(a) that qualify for “The Safety Valve” (18 USC § 3553(f))

•Defendant does not have to otherwise be subject to a mandatory minimum penalty

2-Level Decrease


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18 USC § 3553(f) & §5C1.2

“Safety Valve”

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“Safety Valve”

•Court makes determination; no government motion required

• Sentence without regard to mandatory minimums for violations of select drug statutes

•Downward departures for mitigating factors or variances possible

18 U.S.C. § 3553(f)

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“Safety Valve”

In the case of an offense subject to a mandatory minimum sentence under 21 U.S.C. §§ 841, 844, 846, 960, or 963, the court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds the defendant meets the criteria set forth below:

§5C1.2(a)

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§5C1.2(a)

1. Defendant does not have more than 1 Criminal History Point

2. Defendant did not use violence/threats of violence or possess a firearm or other dangerous weapon in connection with the offense

3. Offense did not result in death or serious bodily injury

Subdivisions (1) – (5)

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4. Defendant was not an organizer/leader/ manager/supervisor of others in the offense; was not engaged in a CCE

5. Not later than the time of the sentencing hearing, defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or common scheme or plan.

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Use of the Term “Defendant” in the Safety Valve

•NOTE: while a defendant may be accountable for a firearm at §2D1.1(b)(1) based on the act of another, he/she may still qualify for the SOC reduction at §2D1.1(b)(17) (“safety valve” subdivision criteria) or for the “safety valve” itself, because §5C1.2(a)(2) only requires that “the defendant did not . . . possess a firearm . . . in connection with the offense”

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§2D1.1(b) Specific Offense Characteristics

Level

(1) firearm, dangerous weapon possessed +2

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(17) if defendant meets the subdivision criteria(1)-(5) of §5C1.2(a) (“the safety valve”) -2

§5C1.2(a)

2. the defendant did not . . . possess a firearm . . .

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§5C1.2(b)

In the case of a defendant 1. Who meets the criteria set forth in subsection (a);

and2. Who is facing a mandatory minimum sentence of

at least five years,

The offense level applicable from Chapters Two and Three shall not be less than level 17

Note: The guideline range for OL 17 at CHC I is 24-30 mos.; a departure or variance below this range is still possible

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Thank you!

Documents

2015 National Training Seminar on the Federal Sentencing ... · the average participant in the criminal activity at ... of those, 21,907 sentenced under §2D1.1. 13 ... the §2D1.1